Action brought on 5 January 2010 - De Lucia v OHIM - Galbani (De Lucia La natura pratica del gusto)

(Case T -2/10)

Language in which the application was lodged: Italian

Parties

Applicant: Domenico De Lucia SpA (San Felice a Cancello, Italy) (represented by: S. Cutolo, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Egidio Galbani SpA (Melzo, Italy)

Form of order sought

Annul the decision of the First Board of Appeal of OHIM of 15 October 2009 in Case R 37/2009-1.

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: De Lucia

Community trade mark concerned: Figurative mark composed of the word element 'De Luca / La natura pratica del gusto' (application for registration No 4.962.346) for goods in Classes 29, 30 and 31.

Proprietor of the mark or sign cited in the opposition proceedings: Egidio Galbani SpA.

Mark or sign cited in opposition: Community word mark 'LUCIA' (No 620.716) for goods in Classes 29 and 30; Community figurative mark composed of the word element 'Galbani-Santa Lucia' (No 2.302.677) for goods in Class 29; national (Italian registration No 67.470) and international (No 256.299) figurative mark 'LUCIA' for goods in Class 29; national (Italian registration No 597.377), international (No 601.651) and Community (No 70.185) figurative mark 'Santa Lucia' for goods in Classes 29 and 30; national (Italian registration No 131.028) and international (No 256.299) word mark 'Santa Lucia' for goods in Class 29, and Community word mark 'Santa Lucia' (No 70.128) for goods in Classes 29 and 30.

Decision of the Opposition Division: Opposition upheld in part insofar as concerns certain goods in Class 31.

Decision of the Board of Appeal: Appeal granted insofar as concerns 'tobacco' (Class 31) and authorisation granted for the registration of this product.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 and no and/or inadequate reasons given in relation to the request that Article 12(a) of the regulation be applied.

____________